Hillary aide-run progressive group to drop $5M ad campaign against Kavanaugh -- and red-state Dems

Chalk this up to the impulse to snatch defeat from the jaws of … defeat, in this case, but the degree of loss in the US Senate will matter. Brian Fallon, who most recently served as Hillary Clinton’s press secretary for her ill-fated presidential campaign, seems to have picked up her sense of strategy and long-term campaign thinking. His new group Demand Justice plans to launch a $5 million ad campaign targeting the Senate’s most vulnerable Democrats in an effort to, um, see Brett Kavanaugh confirmed by a 50-49 vote:

A progressive group working to sink President Donald Trump’s Supreme Court nominee is launching its first round of advertising Friday in three key states to pressure Democratic senators to vote against Brett Kavanaugh.

Demand Justice is spending a portion of its $5 million budget on the ads aimed at Sens. Heidi Heitkamp, D-N.D., Joe Manchin, D-W.V., and Joe Donnelly, D-Ind., and urging them to oppose Kavanaugh by warning that the nominee could rule to eliminate protections for pre-existing conditions.

The ads, obtained by NBC News, are complimentary of the Democratic senators’ efforts to preserve the Affordable Care Act but caution that those actions could be nullified by the next high court justice.

Let’s start with the substantive argument — that Kavanaugh would overturn ObamaCare entirely, or more specifically the pre-existing condition mandate. Fallon’s cherry-picking this issue because it polls well, not because of an actual judicial or political threat. As Jonathan Adler explains in a lengthy Twitter thread, not only does Kavanaugh not change the Supreme Court’s balance on ObamaCare, he’s not inclined to tinker with it anyway:

This comes as part of the latest Democratic hysteria on Kavanaugh, developed after Senate Democrats realized that cheering abortion-on-demand in states like West Virginia and North Dakota might be a big own-goal. It ignores the fact that Kennedy voted to overturn ObamaCare, not keep it, and that’s when the court had the constitutionality of the individual mandate to consider. That’s been neutralized, thanks to the tax-reform package passed in December, which makes it a moot point. All of the other attempts to get the court interested in ObamaCare — remember the origination-clause argument? — have gotten shut down. And even if it did get to Kavanaugh, as Adler points out, he’s likely to rule in favor of severability — which would keep all of the other parts of ObamaCare in place, including the preexisting condition regulation.

It’s a nonsense argument over an issue over which people have lost their passion. Republicans failed to repeal ObamaCare when they had the chance, and it seems unlikely that they’ll pay a price for it at the midterms. That’s especially true in the Senate, where Republicans are only defending one blue-state seat (Dean Heller in Nevada), while Democrats have to defend ten seats in states Trump won two years ago. Rallying people to save that which has already been preserved is not a very compelling argument, not even for low-information voters who see economics as their biggest issue.

That prompts the question: does Fallon want to guarantee a five-seat or larger Republican majority for the next Supreme Court confirmation? Attacking red-state Democrats will only accelerate the momentum for GOP challengers in those states, especially since those ads will likely run when interest in the confirmation and the midterms peaks. Even if it worked by intimidating these incumbents into voting against Kavanaugh, it won’t matter as long as the GOP holds all 50 votes together for confirmation. And if Fallon spends money attacking Susan Collins and Lisa Murkowski over their vote, he’ll be playing right into their hands by allowing them to attack the pro-Hillary progressive extremists and rallying their Republican voters to push back.

A wiser and more rational use of five million dollars might go into shoring up some of these red-state Democrats to keep Republicans from gaining so many seats in November than Collins and Murkowski no longer matter. If the Senate has a 56-44 GOP advantage when a liberal justice leaves the court and Trump gets to pick the replacement, get ready for Amy Coney Barrett and a generational shift of the court. But that would first require rational thought.